Between Notary and Creator: Presidents and Government Formation in the Czech Republic

In this paper, we use our classification system to assess the influence that the presidents of the Czech Republic have so far exerted over fourteen cases of government formation process since 1993.

Let us briefly recall the classification which is presented below. It consists of five major patterns – from “observer” as the weakest head of state, to “creator” as the only government-maker. Unlike numerous indices of formal presidential power, the classification reflects the real constitutional practice of government formation and takes account of various informal factors (e.g. the president’s relationship with parliamentary parties; the presence/absence of legitimacy; the fragmentation of party system) that may strengthen or weaken president in the government formation process (GFP).

Table 1: Presidents’ influence over the GFP

Control over the GFP

Political preferences

Level of activity

Observer

no

irrelevant

no

Notary

limited

irrelevant

low

Regulator

medium

relevant

medium

Co-designer

main

relevant

high

Creator

exclusive

relevant

very high

Before focusing on the Czech presidents, Václav Havel, Václav Klaus and Miloš Zeman, it is necessary to briefly describe the constitutional framework that regulates the government formation process in the Czech Republic. The Czech constitution (Art. 68) gives the president a comparatively large discretion in the GFP, when it says only that “The President of the Republic shall appoint the Prime Minister and, on the basis of the Prime Minister’s proposal, the other members of the government and entrust them with the management of the ministries or other offices.” The president is not obliged to appoint the leader of the largest parliamentary party, nor does the constitution specify any time period within which the president has to appoint a new prime minister. This large discretion may explain the protracted government formation, which started shortly after the 2017 parliamentary elections and which has not been accomplished yet[i]. The newly appointed cabinet is obliged to win the motion of confidence in the Chamber of Deputies (art. 68). If the government fails to win the Chamber’s confidence (which requires an absolute majority of votes from the deputies present), the initiative passes back to the president and the constitution prescribes that the whole procedure is repeated. If this second appointed government should fail in the Chamber, the right to choose the prime minister is passed to the Chamber’s speaker. Should the speaker also fail, the president has to dissolve the Chamber.

In this post we summarise only the major findings of our article, which analyzes in detail individual cases of the government formation process[ii]. The actual practice of the GFP shows a great variation in the role of Czech presidents: it varies from notary to creator (see table 2 below). There were thirteen government formation processes in total. We identified eight notary presidents (Havel in 1998/2 and 2002, Klaus in 2006, 2007 and 2009, Zeman in 2014, 2017 and 2018), four regulators (Havel in 1996, Klaus in 2004, 2005 and 2010), one co-designer (Havel in 1998/1) and one creator (Zeman in 2013).

We argue that the variance results from two major factors. Firstly, the timing of the GFP is important. When the GFP directly followed parliamentary elections, presidents were mostly much weaker. This finding applies also to two situations (2006-2007 and 2017-2018) in which the first attempt to appoint a new cabinet failed, i.e. the cabinet failed to receive a vote of confidence in the Chamber of Deputies, given a complicated situation there. However, using their power to appoint yet another cabinet, presidents Klaus and Zeman chose the same person as prime minister, because there was no viable alternative cabinet sponsored either by parliamentary parties, or by president.

Out of six such cases (the GFP following the parliamentary elections), there were five notary presidents (1998, 2002, 2006, 2013-2014 and 2017) and in two cases there were regulators (1996 and 2010). In contrast, when the GFP followed a government break-up during the electoral term of the Chamber of Deputies, presidents were significantly stronger. Out of six such cases, there were two notary presidents (2007 and 2009), two regulators (2004 and 2005), one co-designer (1998) and one creator (2013).

Secondly, the president’s role depends on the actual power of parties, i.e. their ability to act together as a firm parliamentary majority, which 1) does not need much help from the president in the GFP and 2) which is determined to challenge a potential attempt by the president at influencing the GFP more than the parties wish. In several cases, presidents resolved to play a greater role in the GFP than a notary, but often they faced a firm parliamentary majority that actually did not allow them to exert their influence. Indeed, at least in two cases a solid parliamentary majority thwarted overt presidential attempts to leave a much greater imprint on the final outcome of the GFP: Havel in 1998/2 and Klaus in 2007.[iii]

In contrast, the presidents were particularly strong in times of major political scandals, when parties’ legitimacy suffered heavily and the president could take advantage of it. The most notable examples are Havel in 1998/1 and Zeman in 2013. The last case is particularly important, since it was the first GFP affected by the newly popularly elected president, who made an overt attempt at becoming a ruling president through the installation of a technocratic cabinet without any agreement whatsoever with parliamentary parties. This is a clear example of the president capitalising on his popular election, which was introduced in 2012 and which gave the president a legitimacy advantage. Indeed, Zeman explicitly referred to the fact that he had recently been elected by the majority of Czech voters. Moreover, the technocratic cabinet was closely tied to Zeman’s own party, which, although it lacked parliamentary representation, hoped the ministers would help it get media attention and public support in the 2013 parliamentary elections. This was, however, unsuccessful.

Table 2: Czech presidents in the government formation process

President

Year and Prime Minister

Role of president

Havel

1996: Klaus

Regulator

1998/1: Tošovský

Co-designer

1998/2: Zeman

Notary (failed regulator)

2002: Špidla

Notary

Klaus

2004: Gross

Regulator

2005: Paroubek

Regulator

2006: Topolánek I

Notary

2007: Topolánek II

Notary (failed co-designer)

2009: Fischer

Notary

2010: Nečas

Regulator

Zeman

2013: Rusnok

Creator

2014: Sobotka

Notary (failed regulator)

2017: Babiš I

Notary

The step taken by Zeman was a radical breakthrough in the parliamentary regime and a major shift in the president’s role towards that of creator (e.g. government-maker). In so doing, he destroyed a key constitutional convention linked to the parliamentary basis of the political regime. Comparing the behavior of Zeman with that of his predecessors Havel and Klaus, there is an obvious, substantial, qualitative difference. Zeman’s predecessors always appointed a government cabinet that resulted from a deal with parliamentary parties (only the Tošovský cabinet in 1998 partly broke from the rule).

Thus, with the exception of the Rusnok cabinet (and to a certain extent the Tošovský cabinet too), parties by and large have managed to assert their will against that of the president. This has been substantially facilitated by the fact that no president has managed to create a solid and strong party backing in parliament. As a result, a political proximity between the parliamentary parties and the president plays only a marginal role in the GFP, since the presidents’ relationship to parties was ambiguous and sometimes full of paradoxes.[iv] This has been influenced by the public’s desire for non-partisan or so-called “above-partisan” presidents, who are to a large extent independent of political parties. This is true even though all three presidents were close to some parties or factions. Václav Havel was never a partisan, but he had a number of political allies, particularly in the small parties (the Christian Democrats, Freedom Union etc.), but he never attempted to create his own party. In contrast, Václav Klaus and Miloš Zeman had been partisan prime ministers and leaders of the then largest parties, but they resigned from their party and their relationship with their original parties became rather cold. Of the three Czech presidents, Václav Klaus enjoyed the strongest party backing, but only in the early days of his presidency. Still, the steps he took when governments led by the Social Democrats found themselves in crisis do not testify to Klaus acting as an ODS politician, although he later displayed moderate preferences for some ODS-led cabinets.

Evidently, Havel and Klaus were careful in building their ties with parties because their presidential mandates originated in parliament. This was not the case with Zeman, who has sought to create his own party backing much more purposefully. Nonetheless, his party (Citizens’ Right Party – Zeman’s Followers) failed in the 2013 elections and the pro-president faction within the Social Democrats likewise lost their standing.

Common to all three presidents has been their ignoring of certain parties or at least creating obstacles to their participation in government negotiations or formation. This was very conspicuous with Havel, who repeatedly excluded the Communists from coalition bargaining, and also the far-right Republicans, when they held parliamentary representation[v]. Despite formally respecting the Communists, Klaus effectively took the same position, and in fact went further by wanting signatures of “non-communist MPs” on a document pledging support for a government. This approach created the foundation for the role of the president-regulator. In reality, however, presidents have not always been successful.

Having applied the classification to the Czech case, we demonstrate a great variance in the degree of influence that presidents exert over the GFP, although formal constitutional rules regulating the GFP have remained unaltered since 1993. To slightly amend Maurice Duverger’s famous statement on the divergence between formal constitutional rules and actual constitutional practice,[vi] we can speak about “uniformity of rules, diversity of games.”

The variance of the roles presidents have played in the GFP results mainly from the timing of parliamentary (and sometimes also presidential) elections and from the solidity of parliamentary parties and their ability to act independently of the head of state. In contrast, the political proximity between president and the parliamentary parties does not appear to be key to understanding the level of influence presidents exert over the GFP.

As far as the Czech constitution is concerned, its importance lies in the fact that it offers the president a substantial and not entirely clearly defined space in the government formation process. In availing themselves of this space, all three presidents have very often refused to play the role of a notary who merely confirmed the results of negotiations between parties or provided a decorative façade for the process. Havel, Klaus and Zeman sought to play very active roles and, circumstances permitting, push through their own political ideas and attitudes.

As for the effect of the popular election, it is beyond doubt that it potentially boosts overall presidential power[vii] and in particular it gives the president additional leverage in the GFP, but only if he enjoys the advantage of legitimacy over parliament. But what is more important, the president has not been able to push political parties into the background and push through his own government. The president’s installation of the 2013 Rusnok technocratic cabinet was only a temporary solution; party leaders once again managed to secure the main say for themselves, and the president was forced into the role of head of state in a parliamentary regime. The increased activism of the popularly elected head of state hit the barriers erected by parties – barriers that the president, lacking his own party backing in parliament, has been unable to overcome.

Notes

[i] The Babiš cabinet appointed in January 2017 failed to receive the obligatory vote of confidence in the lower parliamentary chamber and the GFP had to start from scratch. Andrej Babiš was in early June 2018 appointed Prime Minister again, but his cabinet (Babiš II) has not been formed yet, as parties still negotiate with president on filling individual ministerial posts. Also, the junior coalition party – the Social Democrats – are awaiting results of their inter-party referendum that is supposed to confirm or reject party’s engagement in the Babiš cabinet.

[ii] In comparison to the original article, this post takes account of the more recent case of the GFP: Babiš I (Babiš II is being formed in June 2018 and is not therefore included in this post.

[iii] In at least two other cases parties left no room for the president to take initiative (Klaus in 2009 and Zeman in 2014).